Spirit of the Law | The American Spectator | USA News and Politics
Spirit of the Law
by

The great teacher of Jewish ethics, Rabbi Israel Lipkin (1810-1873), had a close disciple named Isaac Blazer (1837-1907) who promulgated his teachings through publications and lectures. Isaac once observed his teacher having a fight with his wife. Later, when he was alone with his mentor, he asked how it was possible for them to have an argument. After all, the Talmud (Bava Metzia 59a) offers a blueprint for sharing duties in a marriage: the husband makes spiritual decisions for the house and the wife has the last word in material matters. Where did that leave room for dispute?

“You’re right,” Rabbi Lipkin answered. “We were arguing over whether it was a spiritual issue or a material issue.”

And so it is in Washington more often than not. There are less arguments about principles than about jurisdictions. Find the right office to park something in and the subject goes away. Until then, the bureaucratic wrangle rages. Does this task belong to ABC or to XYZ?

INDEED THAT IS WHAT this latest wiretapping fracas is about. After all, the President is not signing off on the individual names of citizens. He instructs the NSA in general terms to act expeditiously and use their discretion in determining when a suspect or a tip is hot enough to warrant jumping ahead of the FISA judge’s warrant.

Do you and I have any clear indication which of the two alphabet-soup divisions of government has the better judgment? Nah. It’s just that there’s a check-and-balance involved in having the NSA from the Executive branch be answerable to FISA of the Judicial branch — and no one likes a canceled check or a zero balance. We would all like to see the I’s dotted and the T’s crossed, the round pegs in the round holes and the square in the square, but if someone skips a step occasionally we needn’t lose much sleep. Even if a court eventually determines that it’s not a proper deployment of Executive power, this is a technicality, not an abuse.

The more important question may be, is it working? That is more than the ends justifying the means. If it is working, it shows us that this partnership between NSA and FISA is balanced properly. When things are urgent, NSA acts unilaterally, at least for a few days. When a suspicion is less pressing, action is not taken until the FISA folks get to examine it more minutely. All in all, it adds up to an effective division of duties, like a good marriage.

Methinks we have proof that it is effective. In Jewish law there is a principle: “Nothing seen shows us nothing.” In other words, a witness who says that he did not notice a crime occur is not a proof against the idea that the crime occurred. However, there is a modifying principle: “Seeing that we saw nothing shows something.” That is to say, if you stand in front of a door for an hour and watch it carefully to see if anyone leaves, you are then competent to testify to the fact that no one left during that time.

We have the same situation. If you take a year here or there, and no terrorist incident transpires in the United States, it might not prove competence on the part of our security people. All sorts of technicalities or strategic calculations by the other side could be factors in their inaction. Here, on the other hand, we now have four full years, the equivalent of an entire presidential term. Four years have elapsed since Sept. 11, 2001, a time in which we can be certain that Al Qaeda would have liked to shove a stick in our eye. We wiped out their operational and training base in Afghanistan, captured and killed quite a few of their leaders and foot-soldiers; surely they would have given anything to show that they can still strike in our own territory.

But nothing. All it takes is one suicide bomber, one cretin with a few sticks of dynamite. One car bomb, a riderless Ryder with a fireworks display on a timer. In Iraq they are even using bomber dogs, putting a vest on Rin Tin Tin and sending him off to meet seventy Lassies in the sky. Yet here they have managed not a single strike. Nada. Think about it. Think how extensive a blanket has to be spread on this great country to succeed in squelching a whole movement of malcontents down to zero results.

So I say we’re doing fine. NSA, FISA, all the same to me. If a court determines that NSA must involve FISA every time, then of course the Executive branch should comply. But in the absence of such a decision, we may proceed full speed forward. The message to finicky Democrats: stick to spiritual affairs and leave the material decisions to us.

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